Employment Judge SageIn person for claimantMr Kemp (instructed by Counsel) for respondentDate 26 November 2020
JUDGMENT
The tribunal does not have territorial jurisdiction to hear the Claimant’s claim for discrimination by reason of Section 81 of the Equality Act 2010 when read with the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011. The Claimant’s claim is therefore dismissed.
REASONS
[1]This hearing was listed by Employment Judge Truscott QC following a telephone case management discussion on 20 July 2020. This hearing was listed to consider the issues in relation to the territorial jurisdiction of the Employment Tribunal and whether it is just and equitable to extend time to pursue the claim.[2]The tribunal had before it witness statements from the claimant, his mother, Mrs Alton and Mrs Clements. The statements were read before the hearing and the claimant took the stand and gave evidence in relation to the above two matters.[3]The claimant was not cross-examined.
Findings of fact
[4]The Respondent is a company registered in Liberia. It is a global cruise company. The documentation showed that the Headquarters is based in Miami.[5]The claimant told the tribunal that he was recruited by King’s Recruit, (which is part of Kings Active Foundation, a registered charity) an agency used by the respondent to recruit cruise staff. It was not disputed that the agency was UK-based and was designated by the Respondent as the gobetween. He stated that the agency offered him the position subject to medical checks. Kings Recruit set up the interview via Skype with the Respondent. He was successful at interview and was offered a position with the respondent company.[6]The tribunal saw the letter of offer from the respondent in the bundle at page 55, dated 9 November 2018. The letter confirmed that the claimant was offered employment as a member of cruise staff. He was to be paid in US dollars. The letter stated that the offer was contingent upon him passing pre-employment medical clearance and once that was done, he would be assigned to a ship.[7]The letter of employment was in the bundle at page 58 and was signed by Royal Caribbean Cruises Ltd and the letter was sent from the Head Office based in Miami. The letter confirmed that the claimant would be assigned to a ship called Explorer of the Seas, which was registered in the Bahamas (see page 39 of the bundle). The claimant was informed that he had to report to the port of Noumea, New Caledonia on 21 December 2018.[8]The claimant was not able to start his assignment and was escorted home. The reasons behind that decision are not relevant to the issues before this tribunal.[9]The Claimant told the tribunal that he received sick pay from the respondent company from 22 December 2018 to 2 January 2019 (page 87 of the bundle).[10]The tribunal asked the claimant about emails that he sent to the respondent on 16 January 2019 at page 84 where he stated that he understood that he would not be working for the respondent and that “I will be taking [the respondent] to court for unfair dismissal and mental health discrimination”. On the following page 85, dated 17 January 2019, he again wrote the respondent asking for “proof in an email why the director of medical for [the respondent company] has decided that I can’t work for [the respondent company] because I used to have bipolar type III and I was asked in my medical do I have bipolar. I want to take [the respondent] to cout (sic) and seek compensation for how I was treated”. At page 86 the claimant again wrote to the respondent an email dated 18 January 2019 asking for details of the legal team. It was asked whether he accepted he was aware by 16 January that he could no longer work for the respondent and he replied that he was waiting for what he described as ‘official confirmation’ of the decision as he explained that the ‘whole thing could have been a hoax’.[11]It was the claimant’s case that the respondent intentionally withheld notification of the termination of his employment to exceed the three month time limitation. The claimant stated that he had sent many emails to the respondent asking for official confirmation of the decision to terminate his employment and he did not receive that formal notification until September 24, 2019. The claimant contended that the time did not start to run until he received confirmation in writing of his dismissal.[12]The claimant told the Tribunal that his employment had a sufficient connection to Great Britain because he was recruited by a company based in the UK and he saw a doctor in England. The Claimant also maintained that his employment terms did not state it was to be on a foreign flagged vessel and when he was appointed, he was not assigned to a ship. The Claimant told the Tribunal that the contract of employment only referred to a later assignment to a ship.[13]The Claimant presented his ET1 on the 15 December 2019 after entering into early conciliation on the 28 November until the 11 December 2019. The Law Section 81 Equality Act 2010 Ships and hovercraft(1) This Part applies in relation to— (a) work on ships, (b) work on hovercraft, and (c) seafarers, only in such circumstances as are prescribed.(2) For the purposes of this section, it does not matter whether employment arises or work is carried out within or outside the United Kingdom.(3) “Ship” has the same meaning as in the Merchant Shipping Act 1995.(4) “Hovercraft” has the same meaning as in the Hovercraft Act 1968.(5) “Seafarer” means a person employed or engaged in any capacity on board a ship or hovercraft.(6) Nothing in this section affects the application of any other provision of this Act to conduct outside England and Wales or Scotland Regulation 4 Equality Act 2010 (Work on Ships and Hovercraft) Regulation 2011 Application of Part 5 of the Act to seafarers working wholly outside Great Britain and adjacent waters (1) Part 5 of the Act applies to a seafarer who works wholly outside Great Britain and United Kingdom waters adjacent to Great Britain if the seafarer is on— (a) a United Kingdom ship and the ship's entry in the register maintained under section 8 of the Merchant Shipping Act 1995 specifies a port in Great Britain as the ship's port of choice, or (b) a hovercraft registered in the United Kingdom and operated by a person whose principal place of business, or ordinary residence, is in Great Britain, and paragraph (2) applies. (2) This paragraph applies if— (a) the seafarer is a British citizen, or a national of an EEA State other than the United Kingdom or of a designated state, and (b) the legal relationship of the seafarer's employment is located within Great Britain or retains a sufficiently close link with Great Britain. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 Rule 8 Presenting the claim (1) A claim shall be started by presenting a completed claim form (using a prescribed form) in accordance with any practice direction made under regulation 11 which supplements this rule. (2) A claim may be presented in England and Wales if— (a) the respondent, or one of the respondents, resides or carries on business in England and Wales; (b) one or more of the acts or omissions complained of took place in England and Wales; (c) the claim relates to a contract under which the work is or has been performed partly in England and Wales; or (d) the Tribunal has jurisdiction to determine the claim by virtue of a connection with Great Britain and the connection in question is at least partly a connection with England and Wales. Closing submissions
The Law
[14]The respondent’s closing submissions were in writing. These were taken into account and the further oral submissions were as follows:[15]Counsel dealt with the territorial jurisdiction first stating that the primary evidence is at page 55 of the bundle which is the offer letter which makes it clear that the Claimant is to work on board one of the vessels. Page 56 refers to an assignment to work on a ship. Page 58 is the letter of employment which confirmed that the work is on board a foreign flagged ship and page 39 showed the registry of that vessel.[16]Counsel referred to the factual matrix and referred the tribunal to section 81 of the Equality Act where work on a ship only comes within that statute if they are within prescribed conditions. They are that the jurisdiction of the Equality Act only extends to UK registered vessels. He stated it was a moot point if what is being complained about is withdrawal of an offer or dismissal.[17]Counsel then referred to the regulations enacted under Section 81. Regulation 4 of the of the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 shows how the jurisdiction of the Equality Act is bought back in.[18]The facts in this case showed that this ship started from the port in New Caledonia, therefore, regulation 4 applies. The claimant is not bought back in by Section 1(a). It was not a UK ship. It was registered in the Bahamas.[19]The respondent stated that the claim should be dismissed. The tribunal was referred to the case of Walker v Wallem Ship Management Ltd and another [2020] IRLR 257 and the tribunal was referred specifically to paragraphs 36-8: “36. Parliament chose, in section 81, to empower the Secretary of State to decide whether and to what extent Part 5 should apply in relation to work on ships, work on hovercraft and seafarers. In our judgment, the Secretary of State then decided to apply or disapply the whole of Part 5 of the 2010 Act as provided for in regulations 3 and 4 of the 2011 Regulations and to disapply part, but not all, of Part 5, in the circumstances provided for in regulation 5.37. We consider that we cannot escape from that conclusion by invocation of a beneficent policy-driven construction, whether by applying the Marleasing principle or by invoking other general principles of interpretation such as the need for there to be a remedy where a wrong needs righting, or preservation of the right to work. It would strain the language of section 81, read with the 2011 Regulations, too far to do so.38. For those reasons, we have come to the conclusion that the tribunal was correct to accept Wallem’s interpretation of the provisions and to reject its own jurisdiction to entertain the claims and determine them on their merits. We must therefore dismiss the claimant’s appeal. We do so with some misgivings. The respondent’s conduct has been reprehensible, but the tribunal below and this appeal tribunal are powerless to right the injustice done to the claimant.”[20]Counsel stated that Walker was a case where the claimant went for an interview but was told she could not be employed on the ship because of her sex. The issue in this case was did section 81 of the Equality Act apply for interviews for employment? Section 81 applies to all employment on ships and that is the knockout blow.[21]He went on to state that if the Tribunal was not with him on that point, he went on to deal with the Employment Tribunal rules rule 8(2), the respondent stated that none of these factors are engaged as the respondent is a company registered in Liberia. The agency is not a party to these proceedings and there is no act complained of in respect of the agency. The decision was not taken in England and Wales, the decision to withdraw the offer or to terminate the employment was taken outside of England and Wales by a company registered in Liberia therefore there is no connection with England and Wales. This is a case where there is no territorial jurisdiction, either under section 81 or under rule 8(2).[22]Counsel then went on to deal with the just and equitable extension. He stated that the claim form was advanced on the basis of the employment terminating on the 10 January 2019, this is the last act complained of. That is telling and it goes to his awareness of when the contract was brought to an end.[23]Page 84 was sent days after the telephone conversation and he accepts that he will not be working for the Respondent and will be pursuing a claim for unfair dismissal and discrimination. He is aware of his employment rights and he knows his contract is at an end.[24]Page 85 deals with the same point and is dated the 17 January 2019, he accepts that the relationship is at an end and he wants to take them to court. These two emails demonstrate an awareness that the relationship has ended, and he is aware of his rights.[25]The Claimant has suggested that there is a lack of confirmation and that is the reason for the significant delay. That is a device. These two emails show that the Claimant knew he had been dismissed.[26]Page 86 has the subject line ‘unfair dismissal’ and he wanted to contact their legal team. This shows that he is aware of his statutory rights and means of redress.[27]This is powerful evidence and is contemporaneous. The Claimant is aware of his rights and shows that his claim is considerably out of time. There is evidential prejudice to the respondent which is inevitable as by the time the case comes to a hearing, which will be at the end of next year recollections will fade. The defence of objective justification is a broad test, the Respondent will be prejudiced by the 9-month delay. The Respondent said that taking all of the above into account it is not just and equitable to extend time. The Claimant’s closing submission.[28]The Claimant produced written submissions some of which were referred to above in the findings of fact and they were taken into account by the Tribunal in deliberations. The Claimant stated that it was just and equitable to extend time. The Claimant said he would be put at a greater disadvantage as compared to the Respondent. The respondent has been aware of this case in 2020. The failure to provide the official confirmation would be sufficient for him to have his claim found to be in time.[29]The Claimant stated that the letter confirmed that he was to be employed on a ship. He was employed by Kings Recruit; they were closely connected with the Respondent. When employed by the Respondent you are put in a Talent Pool, when you are in the Pool you can be put on any ship. [the Claimant also referred in his list of issues that the respondent has received state aid therefore it is evidence that it is part of England].[30]In relation to the time point, he stated that the Respondent ignored his emails. He went on to state “My mental health is more than enough to say I could bring it, that gives you enough to extend time. This is not a rule, it is a discretion. Let me go to the final hearing. This is a fact-based case. Their defence is a tactic, they don’t want the public to see the email. When they received information about my bipolar they put a slip under my door to say I was no longer required on board”.[31]The Claimant stated that there needs to be a fair trial, their tactic was to ensure that his claim was out of time. He stated “My mental health is central. You can extend time”. Case Law Other cases referred to by the Respondent in connection with the time points were: British Coal Corporation v Keeble [1997] IRLR 337 Robertson v Bexley Community Centre [2003] IRLR 434 Abertawe Bro Morgannwg University Local health Board v Morgan [2018] IRLR 1050[32]I will firstly deal with the issue of territorial jurisdiction, if it is found that the tribunal lacks jurisdiction that will be an end to the matter. I have been taken by the respondent to section 81 of the Equality Act, which makes it clear that jurisdiction in relation to working on a ship is excluded from part 5 of the Act (which deals with work). As section 81 excludes working on a ship from the definition of work I have therefore to look to the Equality Act (Work on Ships and Hovercraft) Regulations 2011 Regulation 4 which brings jurisdiction back under the Equality Act if two criteria are complied with. The first criteria is that the employee is employed on a UK ship and secondly that the ship under section 8 of the Merchant Shipping Act 1995 specifies a port in Great Britain as the port of choice.[33]I considered whether the claimant was employed (or offered employment) on a UK ship. The evidence before me is referred to above at pages 55 and pages 58. The offer letter confirmed that there was an offer to work on board a ship, but the identity of that ship was not clarified, it was confirmed that the claimant would receive his assignment to join one of their vessels. It was noted by the tribunal that the currency of payment was in US dollars.[34]The further document at page 58 show that the claimant was assigned to a vessel that was registered in the Bahamas; the tribunal saw the registration document at page 39 of the bundle. On the evidence therefore the ship was not a UK ship. It was one registered in the Bahamas.[35]The second point is, what was the port of choice and it is noted that the ship was in a port in New Caledonia. There was no evidence to suggest that the port of choice of this vessel was Great Britain.[36]The claimant was therefore employed to work on a ship that was not a UK ship and no evidence that the port of choice was Great Britain. The offer of employment was made by a Company registered in Liberia with a head office in Miami. There was no evidence to suggest that the Claimant’s employment or his legal relationship was located within Great Britain or that it retained a sufficiently close link with Great Britain.[37]Although the claimant has suggested in his evidence and in closing submissions that the Kings Recruit agency which was based in Great Britain somehow conferred jurisdiction on the respondent. There was no evidence to suggest that this was the case. Kings Recruit was an agency and third party whose involvement was limited to assisting with the recruitment of staff. The Kings Agency was not a party to these proceedings and there was no evidence to suggest that they were guilty of any wrongdoing in this case. The evidence was clear that the offer of employment was made by the Respondent and the legal relationship was exclusively with the Respondent.[38]I have been taken to the case of Walker referred to above and to paragraphs 36-8. This case binds the tribunal. It is clear from this case that the tribunal is not entitled to adopt what is described as a beneficial policy driven construction when applying the regulations and section 81 of the Equality Act. The Secretary of State has decided to exclude those working on ships under certain criteria and as a tribunal we cannot go behind that or construe it in a way that goes against the natural and ordinary meaning of the statute. I must therefore conclude on the evidence that this tribunal has no jurisdiction to hear this case for the reasons I have stated above.[39]I endorse the comments made in paragraph 38 of the Walker case and that I conclude I have no jurisdiction with some regret, but I am powerless to conclude otherwise.[40]Having concluded, I have no jurisdiction I do not need to go further to consider whether the claim is out of time or whether it is just and equitable to extend.[41]The claimant’s claim is dismissed. RECONSIDERATION JUDGMENT
The Law
[1]It is in the interests of justice to reconsider the decision of Employment Judge Sage (dated 26 November 2020 and sent to the parties on 1 December 2020) in respect of whether the claim was submitted in time.[2]The claim of disability discrimination was submitted out of time and is dismissed (in the alternative to it already having been dismissed for want of being within the territorial jurisdiction of the Employment Tribunal).
The Law
[1]In November 2020 in this matter Employment Judge Sage heard arguments regarding two preliminary matters arising in the claimant’s claim of disability discrimination. The first - territorial jurisdiction - was decided in favour of the respondent and is the subject of an appeal by the claimant. Having made that decision, Judge Sage declined to determine the second preliminary matter – whether the claim was submitted in time. That decision is the subject of the respondent’s reconsideration application.[2]Having been appointed by the Regional Employment Judge to consider that application in the long term absence of Judge Sage, I gave a preliminary indication in January this year that if the application was pursued I would allow it to proceed. Having heard submissions from both parties today, that is indeed the position. It is in the interests of justice that the respondent’s reconsideration application proceed even though it was made considerably out of time. It is apparent that an alternative decision on the time point would greatly assist both parties in saving time and expense because it would dispense of a remitted hearing on time were the appeal (and any further appeal) on territorial jurisdiction to succeed.[3]That being the case I heard the time issue afresh. Although Judge Sage’s Judgment and reasons dealt in part with the necessary findings of fact in order to make such a determination, there were relevant matters not dealt with in her Judgment that I feel are required in order to make such a determination. Evidence & Submissions[4]Accordingly I heard from the claimant as well as reading written statements from both his mother and grandmother.[5]I also had a bundle of documents before me. A number of documents had been added to the agreed bundle by the respondent last week upon receipt of the claimant’s revised witness statement. The claimant objected to the inclusion of those documents on the basis of late disclosure but I accepted the respondent’s explanation that the documents only became relevant once they saw the matters referred to in his statement. I offered the claimant extra time to consider those documents with Mr Rose if that was required but after consultation it as confirmed that that was not necessary.[6]Both parties made oral submissions to supplement their written submissions on the conclusion of the evidence.
Relevant Law
[7]Any complaint of discrimination may not be brought after the end of the period of three months starting with the date of the act complained of or such other period as the Tribunal thinks just and equitable (section 123 of the Equality Act 2010). To facilitate early conciliation by ACAS that primary time limit may be extended if conciliation is commenced within that period but that was not the case here.[8]The burden is on the claimant to convince the Tribunal that the discretion should be exercised (Robertson v Bexley Community Centre [2003] IRLR 434). In deciding whether to do so, the Tribunal has a very wide discretion and is entitled to consider anything it considers relevant subject to the principle that there are good public policy reasons why time limits appear in our legislation and they should be exercised strictly in employment cases. When Tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so.[9]Lord Justice Underhill in the Court of Appeal has confirmed that the best approach for a Tribunal in considering the exercise of this discretion is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular the length of, and the reasons for, the delay (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23).
Findings of Fact
[10]Having assessed all the evidence, both oral and written, and the submissions made by the parties I find on the balance of probabilities the following to be the relevant facts.[11]This claim arises from the withdrawal of employment from the claimant as an on-board entertainer on one of the respondent’s cruise ships. The parties agree that the claimant was told this by telephone on 11 January 2019 and that was the latest date on which the alleged discriminatory act or acts took place. Accordingly the primary time limit to bring a claim of discrimination expired on 10 April 2019. In fact the claim form was submitted on 11 December 2019, significantly out of time.[12]The medical position of the claimant is relevant. There were two letters from doctors in the bundle. The first is dated 21 September 2016 and the second is dated 7 January 2019. They are written in very similar, and in some places identical, terms albeit that the concluding comments are specific to the context at the relevant time. Both confirm that the claimant’s presentation did not fit the criteria for a classic bipolar illness and: ‘…at most, if he needs to have a diagnosis, it is bipolar type 3 which is just a spectrum disorder rather than an illness.’. They both refer to the fact that the claimant has excellent insight into his condition, has learned to manage his emotions and was taking a low dose of relevant medication.[13]It is clear therefore that the claimant had a medical condition (whether or not it amounted to a disability) which would have had some impact on his state of mind and ability to deal with the steps needed to submit a Tribunal claim. I also note that the second of those medical letters pre-dates by a few days the events that give rise to the claim. There was no medical evidence as to his health thereafter. However I accept the evidence of the claimant, his mother and grandmother that those events had a significant detrimental impact upon him and I have no doubt significantly impacted his mood and ability to cope with everyday life.[14]The claimant very shortly after the events of 11 January sent a series of emails to the respondent asking for written confirmation of his position and making frequent references to the possibility, and then intention, of bringing legal proceedings. In his first email dated 16 January, headed ‘Court Case’, he referred to an intention to take the respondent to Court for unfair dismissal and mental health discrimination. He also asked for written confirmation as to why he was not allowed to work for the company. That request, as well as other references to the possibility of legal action, was repeated in an email on the following day and then on 18 January he requested contact details for the respondent’s legal team.[15]The claimant’s evidence is that he innocently but mistakenly believed - based he said on common sense - that he needed that written confirmation in order to be able to commence any sort of legal proceedings. He confirmed that he did not have a legal team throughout this period, he did not take any advice and he did not do any form of research himself.[16]Correspondence of this nature then resumed in August and on 17 September the claimant twice emailed the respondent saying as no one was replying to his emails he would get in touch with a solicitor. That email was headed ‘legal action will commence’. He also requested copies of all communications between the parties pursuant to freedom of information and GDPR rules.[17]Those emails did prompt a response from the respondent on 24 September which provided the written confirmation the claimant had been seeking. The claimant acknowledged that on the same day and again referred to seeking legal advice and taking the respondent to Court for discrimination[18]In late October that the claimant consulted the Derby Citizens Advice Bureau who advised him regarding time limits.[19]In 2019 the claimant had also been - at least to some extent - pursuing his own media business which is incorporated under the name ‘Now That’s Entertainment Online Entertainment Competition Ltd’. In the course of his evidence the claimant referred to this company as ‘his baby’. Until November 2019 the claimant had been the sole director. On 25 November two additional directors were appointed. The claimant confirmed that he was responsible for making the necessary filings with Companies House.[20]In the meantime, the claimant appeared in March 2019 on the Judge Rinder television show. I accept his evidence that he did not initiate this appearance in that the ‘claim’ was brought by somebody else but he was the ‘respondent’ to it and clearly agreed to participate in the show. His evidence was that he enjoyed doing these sorts of things. The respondent says that this was all a publicity stunt in order to gain attention for the forthcoming live show produced by the claimant’s company and that the claimant’s apparent breakdown during the show was staged. The claimant denies this and says it was all entirely genuine. I accept the claimant’s evidence in that regard but, as noted, he did freely agree in the first instance to take part in the show at that time.[21]I was referred to various social media messages which seem to indicate that the claimant’s company was active in the relevant period and that a show, part of which had been recorded in 2018, was going to go live in the course of April 2019 onwards. The claimant’s evidence was that all of his social media in this respect (which started in January 2019) was conducted by an external organisation on his behalf, that he had no involvement and although he was ‘the boss’ he did not know what was going on on his behalf. I find this evidence extremely surprising and lacking in credibility. On the balance of probabilities the claimant must have been aware at least to some extent of the activities being advertised on behalf of his own company (of which at the time he was the sole director) and that some of those activities were happening and that he must have been involved to some extent to make them happen.[22]Another significant matter taking place in the claimant’s life during this period was a criminal prosecution of an individual who had been harassing him. The defendant pleaded not guilty in the Magistrates Court, the claimant gave evidence and on 21 October 2019 a restraining order was granted for one year against the defendant.[23]The claimant commenced the early conciliation process with ACAS on 28 November and the ET1 was submitted on 11 December.
Conclusions
[24]I remind myself that I am exercising a broad discretion taking all relevant factors into account although in accordance with Underhill LJ’s advice in Adedeji, I start with the length of and reasons for the delay in submitting the claim.[25]Overall there was a significant delay between the expiry of the primary limitation period and the claim form being filed – some 8 months. Also there was a specific delay within that namely the delay between the claimant being advised by the CAB of relevant deadlines in late October and him contacting ACAS in late November.[26]In broad terms the claimant relies upon two reasons for the delay in filing his claim. His mental health and his mistaken belief that before he could file a claim he needed to get a written confirmation from the respondent as to the reason for the termination.[27]As far as the first is concerned, I note the limited medical evidence before me and accept that the period following the ending of his employment with the respondent was an extremely stressful time for him and a matter of great disappointment which must have exacerbated his condition at least to some extent. Also, there were clearly many other things going on in his life. Whilst I accept the point made by Mr Rose on behalf of the claimant that just because a person can do one thing does not mean that they are able to do another, I am very mindful that the claimant was able to participate in the Judge Rinder show during the primary time limit, was at least to some extent involved in running his own company throughout and by 25 November had agreed to two additional people coming on board as directors and participated as a witness in a criminal prosecution. All these matters lead me to believe that the claimant was able, notwithstanding his mental health issues, to participate in serious matters that required him to apply his mind to matters out of the usual course of everyday living.[28]As far as his mistaken belief is concerned, whilst I accept that this was a genuine mistake on his part, what the relevant correspondence does show is that the claimant, even if he did not understand the legal technicalities behind the words, was at least familiar enough with the relevant concepts to threaten legal proceedings, refer to unfair dismissal and discrimination. As someone who ran his own business and clearly participated in a number of different activities in the media world, he clearly could have done even a very basic level of research and discovered the more accurate position for himself. Instead of that he made an incorrect assumption.[29]As for the claimant’s allegation that the respondent deliberately delayed replying to his requests in order to ensure that he missed the relevant time limit, there is nothing to back up that allegation other than simply an absence of reply. Indeed, another possible explanation is that it was his reference to freedom of information and GDPR that prompted the respondent to reply when they did.[30]For all these reasons I am not persuaded that the reasons relied upon by the claimant for the lengthy delay are cogent. Even if I was so persuaded, I note that he went to the Derby CAB in late October and yet then waited the best part of another month before he started the ACAS early conciliation process (and it was in that period that he appointed two additional directors to his Company).[31]Turning finally to the question of prejudice. Undoubtedly the claimant would be more prejudiced than the respondent by a decision that his claim was out of time. Mr Kemp says that it is possible that respondent would not be able to call all of the witnesses that it may wish to at a future hearing as they now live out of the jurisdiction. That may be correct but is by no means guaranteed. In contrast the claimant loses the opportunity to have his claim heard if I do not exercise the discretion in his favour.[32]However, prejudice is just one factor to take into account and in light of my findings and conclusions regarding the length of and reasons for the claimant’s delay, I am not persuaded that it is just and equitable to extend time.[33]Accordingly I find that the claim of disability discrimination was submitted out of time and should be dismissed on that basis as an alternative to it already having been dismissed as being outside the territorial jurisdiction of the Employment Tribunal.